Filtering and the Courts

“As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.”—Justice John Paul Stevens,
Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al.

“Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.”—Judge Lowell A. Reed, Jr.,

American Civil Liberties Union, et al. v. Janet Reno (No. 98-5591)

“Every legislative limitation upon utterance, however valid, may in a particular case serve as an inroad upon the freedom of speech which the Constitution protects.”—Supreme Court Justice Stanley F. Reed,
Winters v. New York, 333 U.S. 507, 510 (1948)

ALA v. Pataki

ACLU Feature on ALA v. Pataki

“In ALA v. Pataki, Federal District Judge Loretta A. Preska issued a preliminary injunction against the New York law, calling the Internet an area of commerce that should be marked off as a ‘national preserve’ to protect online speakers from inconsistent laws that could ‘paralyze development of the Internet altogether.’”

ACLU v. Miller

Federal District Court Decision in ACLU v. Miller

“In ACLU v. Miller, Federal District Court Judge Marvin Shoob today granted the ACLU’s request to enjoin Georgia's statute restricting free speech in cyberspace and denied the State’s request to dismiss the suit.”

“The Court agreed with the ACLU, Electronic Frontiers Georgia and others that the statute is unconstitutionally vague and overbroad because it bars online users from using pseudonyms or communicating anonymously over the Internet. The Act also unconstitutionally restricts the use of links on the World Wide Web which allows users to connect to other sites.”

“In the Court's decision, Judge Shoob noted that Georgia’s law, ‘sweeps innocent, protected speech within its scope.’ He went on to say that it, ‘affords prosecutors and police officers with substantial room for selective prosecution of persons who express minority viewpoints. . . .[Moreover,] Georgia already has in place many less restrictive means to address fraud and misrepresentation.’”

American Library Association v. U.S. Department of Justice, Reno v. American Civil Liberties Union, and the Communications Decency Act

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The Supreme Court’s 9–0 ruling affirmed that Internet communications warrant the same level of constitutional protection as books, magazines, newspapers, and speakers on a street corner soapbox. Writing for the court, Justice John Paul Stevens held that “the CDA places an unacceptably heavy burden on protected speech” and found that all provisions of the CDA are unconstitutional as they apply to “indecent” or “patently offensive” speech. The Court also ruled that the Internet “constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers,” and that “any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox.” The Court noted that the Internet differs from broadcast media because Internet users are not “assaulted” by material, but must
seek out material on their own.

Mainstream Loudoun v. Board of Trustees of Loudoun County Library

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On November 23, 1998, Judge Leonie Brinkema issued her final decision, declaring that the highly restrictive Internet policy imposed on Loudoun County libraries is invalid under the free speech provisions of the First Amendment.

Judge Brinkema found that Loudoun County’s “Policy on Internet Sexual Harassment” was not narrowly drawn, because less restrictive means were available to further the library board’s interests. “First, the installation of privacy screens is a much less restrictive alternative that would further defendant’s interest in preventing the development of a sexually hostile environment,” the court wrote. “Second, there is undisputed evidence in the record that charging library staff with casual monitoring of Internet use is neither extremely intrusive nor a change from other library policies. . . . Third, filtering software could be installed on only some Internet terminals and minors could be limited to using those terminals. Alternately, the library could install filtering software that could be turned off when an adult is using the terminal.” Judge Brinkema pointed out that she did not find that any of the less restrictive means were themselves necessarily constitutional if implemented.

On February 1, 1999, in American Civil Liberties Union v. Reno, the federal lawsuit challenging the Child Online Protection Act (COPA or CDA II), U.S. District Court Judge Lowell A. Reed, Jr., of the Eastern District of Pennsylvania, issued a preliminary injunction (PI), enjoining the government from enforcing the act. The PI means the government cannot prosecute anyone under COPA until the trial on the constitutionality of the law.

The ACLU and 16 other plaintiffs filed the lawsuit on October 22 of last year. It challenges the constitutionality of COPA, which the 106th Congress had enacted in response to 9–0 U.S. Supreme Court decision striking down the Communications Decency Act of 1996. President Clinton signed COPA on October 21 of last year. It would have gone into effect on November 29.

COPA makes it a crime to use the World Wide Web to commercially distribute materials “harmful to minors.” The act gives Web site operators an affirmative defense to prosecution if they keep minors under 17 years old from accessing “harmful” materials by requiring use of a credit card, debit account, or other adult verification. On June 22, 2000, a three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously upheld U.S. District Court Judge Lowell A. Reed, Jr.’ decision the Child Online Protection Act (COPA) violated the First Amendment right to free speech.

ACLU v. Reno II

ACLU Resources on ACLU v. Reno II

In a unanimous decision issued on Thursday, June 23, 2000, the three-judge panel of the Third Circuit Court of Appeals struck down the Child Online Protection Act, also known as “COPA,” also known as “son of CDA” (the Communications Decency Act), as unconstitutional.

COPA would have made it a federal crime to use the World Wide Web to communicate “for commercial purposes” material considered “harmful to minors,” with penalties of up to $150,000 for each day of violation and up to six months in prison.

Kathleen R. v. City of Livermore is a complaint filed by the mother of a 12-year-old who allegedly used public library Internet access to download and distribute sexually explicit materials. The case was settled in favor of the library. See
Kathleen R.

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